Commercial Litigation and Dispute Resolution Blog

In a recent precedent-setting case, the Ontario trial court considered the boundaries of what is acceptable speech in the internet blogosphere. The case is one of first impression in Canada. As the court observed: “Political debate in the Internet blogosphere can be, and, often is, rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar. It is not for the faint of heart. This case is an action in defamation involving political bloggers on the Internet.”

Overview

In Baglow v. Smith, 2015 ONSC 1175, the Ontario Superior Court of Justice dismissed a claim for defamation brought by left-wing political blogger (“Dr. Dawg”) against a conservative blogger and the moderators of an online message board entitled “Free Dominion” that catered to conservative viewpoints. The court found that the statement made about the plaintiff – that he was “one of the Taliban’s more vocal supporters” – was defamatory, but held that it was protected by the defence of fair comment.

The court heard extensive testimony over many days, including evidence from a court-appointed expert in media and communication on the nature of political blogs and other online communication, and the battle between the left and right in the political blogosphere played out in the courtroom during the trial.

Those who operate blogs or message boards can be held liable

The moderators of the message board argued that they should not be held liable for merely maintaining a message board when they did not write, edit, or modify the impugned words. Supported by the Canadian Civil Liberties Association, which intervened in the case, they argued that holding message board operators liable would be an unconstitutional violation of free expression because they would be forced either to immediately take down a posting upon complaint or face liability as publishers for something they did not author. They argued that the spectre of such liability would have a chilling effect on the flow of information and the freedom of expression and debate.

The court rejected this argument, finding that the moderators set up the message board with a specific political point of view. They were not mere passive bystanders but had the ability to control content on the board, as shown by the board’s terms of use. The court held that acceding to the defendants’ argument would leave potential plaintiffs with little ability to protect their reputations. The moderators were therefore “publishers” who were potentially liable.

Context matters (a little?) when deciding what is defamatory

The court heard considerable evidence and submissions regarding the “rough and tumble nature” of new media platforms. The court observed that political discourse on blogs and message boards, particularly those which are partisan, is qualitatively different than political discourse in more traditional media such as newspapers and television. However, the court refused to find that “anything goes” in the blogosphere, even bearing in mind its unique context and audience. In the end, the court held that the statement in question was defamatory of the plaintiff as tending to lower his reputation in the eyes of a reasonable person.

Defence of fair comment

In the result, the court dismissed the action on the basis that the statements were protected by the defence of fair comment. The topic at issue was the treatment of Omar Khadr, a Canadian, by the American armed forces. The court found that (1) the topic was one of public interest; (2) the comment was based on known facts; (3) the defamatory statement was an opinion, rather than a statement of fact that was capable of proof; and (4) the opinion was one which a person could honestly express on the proved facts, whether reasonable or not.

Key implications of the decision

As the court noted in the decision, the decision is a case of first impression on an important topic. At least two points stand out:

1. The finding that those who operate a message board “publish” its content is a potentially significant and far-reaching aspect of the court’s decision, as it may greatly expand the potential liability of those who merely operate message boards and blogs on which others post content.

2. Despite much discussion in the judgment regarding the need to take into account the unique nature of blogs and message boards, it is not clear that courts will apply an appreciably different standard when determining what is defamatory, though some comments in the decision may leave more room for that argument in future cases.

Marko practices civil and commercial litigation with a focus on class actions, defamation, cross-border disputes, shareholder disputes, pension litigation, and commercial arbitrations. He has appeared as lead counsel before ...

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